The Supreme Court has decided federal ministers do not have a constitutional duty to consult Indigenous peoples throughout the lawmaking process.

In a 7-2 decision, the majority of Supreme Court judges found federal lawmakers do not have a constitutional duty to consult Indigenous peoples during the legislative process. However, five of the nine judges said the Crown is involved at the lawmaking stage, leaving the door open to future legal challenges from Indigenous groups, because the latter can claim the Crown did not fulfil its constitutional duty to consult.

The ruling was made to uphold parliamentary sovereignty — a guarantee under the Constitution that Parliament can enact or unmake any laws it wants. Introducing a duty to consult, the majority of justices argued, would allow courts to interfere with the lawmaking process.

In 2012, former prime minister Stephen Harper introduced two omnibus bills changing Canada’s environmental protection. The Mikisew Cree First Nation from northeastern Alberta argued the government should have consulted them throughout the lawmaking process because the bills infringed on the band’s rights to hunt, trap and fish on its lands.

The Mikisew Cree asked the court to extend constitutional obligations — which currently only apply to the executive branch of government — through the policymaking process. The Mikisew argued the consultation efforts should be made before bills affecting their rights are tabled in the House of Commons.

The majority ruled against the Mikisew Cree. The court found the honour of the Crown, and, by extension, the duty to consult, only applies under the Constitution to the prime minister and his cabinet.

Former Mikisew Cree First Nation Chief Steve Courtoreille and the nation’s legal team addressed a packed room of reporters in Edmonton, two hours after the decision came down. The leader said Thursday’s Supreme Court decision makes Canada’s promise of reconciliation “meaningless.”

“I’m very disappointed that our justice system has failed us one more time,” Courtoreille said. “It’s a sad day for Canada. … All Canadians (should) really think about what’s at stake.”

It was under Courtoreille’s leadership that the First Nation launched this case.

Along with other Indigenous groups in northeastern Alberta, the First Nation signed Treaty 8 as an agreement with the Crown in 1899. The treaty agreed to let the Mikisew Cree keep their rights to hunt, trap and fish on their land in exchange for a large amount of their territory.

As part of the exchange, the Crown has to guarantee it will act honourably in all its dealings with Indigenous peoples. This, according to the decision, is the basis of all Aboriginal law in Canada and is codified in Section 35 of the Constitution. This part of the Constitution includes the Crown’s duty to consult Indigenous peoples if, and when, the state contemplates taking an action on their lands.

Justice Andromache Karakatsanis argued that the duty to consult is “ill-suited” for legal action, because it would lead to increased scrutiny from the courts of the way laws are drafted and then introduced in the House of Commons.

By extension, the practice of parliamentary sovereignty would be harmed by including a constitutional duty to consult.

Justice Malcolm Rowe, who wrote his own opinion in the decision, said the duty to consult would also be “highly disruptive” to how Parliament conducts its business. “It would encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing,” Rowe said. “It would … create rather than solve problems.”

Most judges said the duty to consult is not the only way for Indigenous peoples to protect their constitutional rights, and that other approaches could be developed. The decision didn’t specify what these approaches should be.

This does not mean the Crown is off the hook. In a 5-4 decision, Supreme Court judges found the government still has to act honourably and maintain the Crown’s constitutional obligations to Indigenous peoples while drafting legislation that may affect their rights.

“While an Aboriginal group will not be able to challenge legislation on the basis that the duty to consult was not fulfilled, other protections may well be recognized in future cases,” Karakatsanis said.

Not all judges were of the same mind. Justice Rosalie Abella opposed the duty-to-consult ruling. The honour of the Crown, she said, “infuses the entirety of the government’s relationship with Indigenous Peoples,” so the duty to consult should “apply to all exercises of authority,” including the enactment of legislation.

Reaction to the decision was swift and immediate from Indigenous lawyers, activists and advocacy groups across the country.

Perry Bellegarde, national chief of the Assembly of First Nations, called the decision “disappointing” and applauded the nation for its “diligence” in pursuing its case to the highest court.

“First Nations maintain that Canada must engage with First Nations on any initiatives that could impact our rights,” he said on Twitter.

The Assembly of First Nations was granted intervenor status in this case. The assembly’s factum argues it was an “unprecedented” opportunity for the court to determine how meaningful consultation could take place alongside the land interests of Indigenous peoples throughout the country.

A positive decision would have been a way for the government to “truly embrace” the path to reconciliation in Canada, the assembly’s council wrote.

“Canada must also ensure that the unique interests of First Nations are considered, and any legal obligations with s. 35 of the Constitution are fully discharged during the federal lawmaking process, prior to the enactment of legislation,” the factum said.

Courtoreille said the Miskisew Cree will continue to fight — on the global stage, if necessary — for their treaty rights, even if today’s decision did not rule in their favour.